Last week, Judge Jack H. Weil, a senior Justice Department official responsible for training other judges, suggested in a court deposition that three-year olds can represent themselves in immigration court. “I’ve taught immigration law literally to 3-year-olds and 4-year-olds,” Weil said.
This is an alarming statement, to say the least. It’s even more alarming in the context of a federal litigation in the Western District of Washington where the government is arguing that it can effectively protect children’s due process rights without providing them a lawyer in deportation proceedings.
The impact of counsel on the likelihood of success is substantial. According to government data analyzed by the Transactional Records Access Clearinghouse, children who are unrepresented are ordered deported 90 percent of the time. Those with a lawyer are five times more likely to be granted relief by an immigration judge. A study of asylum applications before the Asylum Office by researchers at Georgetown University supports this conclusion, finding that while legal counsel is the most significant factor in asylum applications generally, it has an even greater impact in cases involving younger applicants.
To suggest that children’s due process rights—in proceedings that have life or death consequences—can be protected by teaching a child the complexities of immigration law, which will in turn facilitate that child’s ability to represent herself, is absurd, particularly coming from an immigration judge. Retired immigration judge Eliza Klein says Weil’s words are “cause for genuine concern over what lengths the Executive Office for Immigration Review will go to abide by the President’s political and economic agenda of prioritizing certain cases (people fleeing violence in Central America and Mexico who have recently arrived at our borders seeking protection, as they are legally entitled to do) over others (people whose case may have been pending for years before the immigration courts).”
Denying lawyers to children is also bad policy, as legal counsel improves systemic efficiency. Among children whose cases were filed in fiscal year 2013, less than one percent of children who had attorneys were ordered removed in absentia (for failing to appear for their hearing).
Legal representation also serves as an effective mechanism for identifying other necessary services. Lawyers for immigrant children often discern needs beyond the immediate legal case—such as medical care, schooling, food assistance programs, and mental health treatment—and make referrals to appropriate social services. The recent trafficking case of eight unaccompanied children forced to work on an egg farm in Ohio highlights the need for supportive services.
On February 11, Senator Harry ReidHarry ReidSanders and Schumer are right: Ellison for DNC chair The Hill's 12:30 Report Hopes rise for law to expand access to experimental drugs MORE (D-Nev.) and Rep. Zoe Lofgren (D-Calif.) introduced the Fair Day in Court for Kids Act, which calls for access to counsel for unaccompanied children and other vulnerable individuals in the immigration court system. Rather than trying to teach toddlers immigration law (not to mention trial advocacy skills), Congress should pass this common sense measure.
Byrne is Human Rights First's senior associate for refugee protection.